Cheung Wai Kar v. Dragon Kings Development Ltd t/a Famous (Dragon Kings) Restaurant

HCPI 880/2017

[2019] HKCFI 3114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 880 OF 2017

____________

____________

_______________

JUDGMENT

_______________

1.This is a personal injuries action. The plaintiff (“P”) was employed by the defendant (“D”) as a substitute chef working in the kitchen of D’s restaurant at Shop 61, G/F, Melody Garden, No 2 Wu Chui Road, Tuen Mun, New Territories, Hong Kong (“the restaurant”). P was injured on 6 September 2016 when cleaning the metal filter of the exhaust hood (“the accident”). Both liability and quantum were in dispute at trial.

THE ACCIDENT

2.P’s evidence was that he had been a chef for 30 years and he was employed as a substitute employee to cover for Mr Chan Hau Ku, a former colleague who recommended him for the role when he himself needed to be away for two weeks for a medical procedure.  P accepted on cross-examination that he had never been told he would have longer term employment than this with the defendant.

3.Sometime on the evening of 6 September, P says he was instructed by his supervisor, one Ah Sai, to clean the metal filter of the exhaust hood in the kitchen, and since this was 1.8 – 2 meters from the ground, he had to climb onto the kitchen stove to clean it.  He said the filter was covered with grease and his hand slipped with the result that his right thumb was cut on the sharp edge of the filter and consequently he lost his balance and fell to the ground sustaining various injuries, although it is only the injury to his thumb with which these proceedings are concerned.

THE PLAINTIFF’S EVIDENCE

4.I turn then to P’s evidence at trial.  Whilst his written statement was coherent, his evidence under cross-examination and re-examination was confused, inconsistent at times, and moreover he seemed to me willing to say whatever he thought would advance his case.  Mr Sham for the plaintiff sought to deflect any criticism on this basis by suggesting that P as unsophisticated and could not understand the questions being put to him, but this was in stark contrast to his evidence in chief, and in any event, his answers to the questions put to him by his own counsel were equally inconsistent and therefore unreliable.  Accordingly, I found it difficult to place any reliance on his oral testimony.

5.It was, however, clear from the documents that P had worked for eight days prior to the accident, starting each day at about 2 pm and finishing at about midnight.

6.There was no clear evidence as to when Ah Sai had given P the instruction to clean the filter and hood.  It must have been before 10:45 pm when the accident happened, but P gave inconsistent responses about this and indeed insisted both on cross-examination and re-examination that the instruction had been given to him at 11 pm, which clearly cannot have been the case.  It was clear that it had been somewhat earlier and the inference I drew was, as Mr Ho for the Defense submitted, that the cleaning operation took place when the cooking for the evening was complete.

7.P took issue with this, and said that cooking continued until 12 midnight, when the restaurant closed.  But I found his evidence on this difficult to accept, given that he said he climbed on the stove to do the cleaning and it is difficult to see how he could have done this whilst there was still cooking taking place, or indeed why he would attempt to clean the hood before the cooking was finished.

8.It was P’s evidence that it was not part of his job to clean the kitchen before leaving work.  He said in his statement that Ah Sai did not provide any instructions on how to clean the hood or any tools to assist him in cleaning the hood.  He said it was hard to seek instructions from Ah Sai because when he came to carry out the task Ah Sai was in the front of the restaurant and the only colleague in the kitchen, one Mak Tat Ming, was busy dealing with the chopping boards which also suggested to me that the cooking was over for the evening; as a result he says he did not seek anyone’s assistance.

9.When he was cross-examined about the necessary equipment he said that he did not ask about them because he thought he could do the task without any.  In his evidence in chief he said he intended to dismantle the hood before washing it, which suggested he had a familiarity with such operations, but on cross-examination, he said he did not know what his next step would be after dismantling it because he had not thought about it.

10.P confirmed therefore that he neither sought assistance nor asked for further instructions from either Ah Sai or Mak Tat Ming.

11.P said that if there was a ladder or chair available, he would not have needed to climb onto the stove, but he denied this was because that was inherently dangerous.  Indeed he went further and said it was normal and safe to climb upon a stove.

12.He said he did not pay attention to whether there were any chairs in the restaurant, and when questioned further about this he said that he did not see any chairs and he thought all the seats were booth seats.

THE DEFENDANT’S EVIDENCE

13.By way of response to P’s allegations, the defendant called two witnesses who were shareholders in the defendant but neither of whom was present at the relevant time, and so neither was in a position to speak to the circumstances surrounding the accident itself.  Neither Ah Sai nor Mak Tat Ming gave evidence.

14.Mr Cheung Yat Man (“CYM”) gave evidence that P was employed as a substitute chef, because the regular chef, Mr Chan Hau Ku had taken leave of absence for the purpose of a medical procedure.  CYM confirmed that P had been introduced to the defendant by Mr Chan.  Accordingly, the defendant employed P on 28 August 2016 at a daily wage of HK$750.  CYM produced the relevant payroll slip to support these payments.

15.CYM’s evidence was that the restaurant was small in scale, serving no more than 60 persons, and about half of these seats were fixed, the other half being chairs, some with backs and some without.  Because of its small size, he said, there is no real demarcation of labour in the kitchen.  All of the cooking was carried out by Mr Chan and so CYM said he had specifically required a substitute employee who was experienced and would be able to work unaided.  His further evidence was that the cleaning of the kitchen was invariably handled by the kitchen staff themselves and not by wait-staff or dishwashing staff and that accordingly P should have had the necessary experience to carry out the cleaning tasks safely.

16.CYM’s evidence was that the blades of the hood were detachable and because they were only two meters high, a standing male could reach up with his arms aloft to detach them.  He said that in any event there were chairs and a ladder available.  He also said that the kitchen was equipped with rubber gloves and work gloves for the employees to use to protect their hands when performing tasks such as the cleaning of the hood.

17.His evidence was that the blades for the hood could have been cleaned using the hose connected to the faucet in the kitchen and left on the floor overnight to dry.  These would then be replaced the following morning.

18.The remainder of the hood could not be detached but did not get as greasy and so the usual practice was for an employee to use a long handled brush to clean the surface of the frame of the hood with detergent.  This would then dry overnight.

19.CYM produced photographs of the long handed brush and the detergent which was available in the kitchen, as well as the rubber boots and gloves which were also available for use.

20.His evidence was that it should be obvious as a matter of common sense to anyone that one should not stand or kneel on a stovetop because it would be greasy with food residue and easy therefore to slip.  In addition, he said, it was connected to a gas pipe.

21.The defendant’s second witness was CYM’s son, Mr Cheung Chin Kiu (“CCK”).  CCK was called to the restaurant after the accident and drove P to Tuen Mun Hospital.  He says he asked P about the accident on the way to the hospital and he reported his conversation to CYM and this formed the basis of the Form 2 Notice, which was prepared under the Employees’ Compensation Ordinance (Cap 282).

22.CCK’s further evidence was that when he was driving P to Tuen Mun Hospital, there was a strong smell of beer in the car and he said he believed that this came from P.  Initially his evidence was that he had been alone in the car with P, and as he had not been drinking himself, he believed the smell came from P, although he corrected this statement when giving evidence to say that he was accompanied at the time by a friend, and he made no claim as to whether his friend had been drinking or not so that I can place no reliance on his original statement that he believed that the smell came from P.  He pointed out that there was a clear sign on the kitchen door prohibiting smoking and the drinking of alcohol.

THE PLAINTIFF’S CLAIM

23.P relies on the following causes of action against the defendant:

(1)  breach of contract of employment;

(2)  breach of statutory duties under the Occupational Safety and Healthy Ordinance (Cap 509) (“OSHO”);

(3)  breach of statutory duties under the Occupiers Liability Ordinance (Cap 314) (“OLO”); and

(4)  negligence.

24.Mr Sham submitted that it is trite that once an employment relationship is established, a duty of care could be readily inferred from the employment relationship itself, and/or the contract of employment.  He submitted that the scope of such duty extends to (1) the provision of a safe place of work, (2) the employment of competent employees and effective supervision, (3) the provision and maintenance of safe plant and equipment, and (4) the enforcement of a safe system of work (Wilsons & Clyde Coal Co Ltd v English [1938] AC 57).

25.He referred the court to the dictum of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783(applied by the Court of Appeal in Cheung Kin Kwok Alen v Lau Kam Chee [2004] 3 HKC 227) which he said embodies the appropriate approach:

“From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; ... He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probably effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

26.He referred the court to the judgment of Keith JA in Wong Wai Ming v Hospital Authority [2001] 3 HKLRD 209, 212 – 213 quoting Lord Reid in The Wagon Mound (No 2) [1967] 1 AC 617, 642E – 643A:

“... [T]he general principle [is] that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. ... [I]t is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.

... Two issues arise in the present case about their application.  First, was there a real risk, as opposed to a mere possibility, which the Authority ought to have appreciated, that nurses carrying out duties at the reception counter in the waiting room might be attacked?  Secondly, if so, what precautions, if any, should the Authority have taken to reduce the risk of injury to its nurses as a result of such an attack?”

27.In respect of the duty under OSHO, Mr Sham referred the court to the decision in Lam Wai Chi v Project Concern Hong Kong (unreported, HCPI 78/2002, 10 April 2003), at para 48, that:

“ ... the considerations under the Occupational Safety and Health Regulations and the tort of negligence are co-extensive.”

28.On the basis of these authorities Mr Sham submits that P was a cook, and not a cleaner and that he had never cleaned the filter before.  Notwithstanding this, he submitted, Ah Sai provided no instructions to him about how to go about the task, nor did he provide any tools so that P had to take matters into his own hands.  The defendant’s failure in this regard was a clear breach of duty.

29.Further Mr Sham submits that failing to provide P with safety gloves when the risk of cutting one’s hand on the sharp edge of the filter was known or reasonably foreseeable was a further failure to provide a safe system of work.

30.Mr Ho, for the defendant, submitted by contrast that the cleaning of the filter was a simple task and it was therefore reasonable for the defendant to expect that P would exercise common sense in performing the task without the need for him to give specific instructions or advice on how it should be performed, and he relied on the judgment of Deputy High Court Judge M K Liu and the cases he cited in Tsang Chung Ming v Caritas–Hong Kong [2019] HKCFI 1035.

31.Mr Ho relied on the Court of Appeal’s decision in Fong Yuet Ha v Success Employment Services Ltd (unreported, CACV 100/2012, 28 December 2012), in which Kwan JA (as she then was) said:

“ 17. There is no quarrel with the principle that an employer’s duty to provide a safe system of work is a personal and non-‌delegable duty. It was not the holding of the judge that where an employer is under an obligation to provide a safe system of work, such a duty could be shifted to the employee so that the employee could be expected to discharge this duty of providing a safe system of work for the employer. The general principle on the duty to prescribe a safe system of work may be found in this passage in Charlesworth & Percy on Negligence, 12^th ed, para 11-67:

‘It is a question of fact whether or not there is need for a system of work to be prescribed in any given circumstances.  In deciding it, regard ought to be had to the nature of the work, that is whether properly it requires careful organisation and supervision, in the interests of safety of all those persons carrying it out; or it can be left by a prudent employer confidently to the care of the particular man on the spot to do it reasonably safely.  There was no failure to provide a safe system where an employee was faced with a ‘one-off’ task requiring the exercise of common sense and it was difficult to see what relevant instruction could have been given to him.  But an employer is under a duty to prescribe a system of work, even where the operation is a single one, if it is necessary in the interests of safety.’”

32.Mr Ho also referred the court to the decision of the High Court of Australia in Raimondo v South Australia (1979) 23 ALR 513 where:

“ an experienced painter sustained injury when a plank fell from the two trestles which supported it onto the painter’s head. The High Court of Australia (Mason J, concurred by Barwick CJ,Gibbs and Aickin JJ) held that an employer was not required to give specific instructions to painters who were required to paint a 14 feet high ceiling, and the employer was not liable for the painter’s injuries. His Honour held at 518 that:

‘       In the present case, when all is said and done, I cannot think that by giving two experienced painters the equipment to which I have referred and by requesting them to paint the ceiling of the corridor—a very simple and uncomplicated task—without further instruction or caution, the respondent unreasonably exposed them to risk of injury.  It is against common sense to say that the taking of reasonable care by an employer called for the giving of an elementary instruction or caution in relation to the slight, albeit evident, possibility of injury which an imprudent mode of adjusting the trestles would entail.  The risk of injury was slight, the possibility of its occurrence was as apparent to the employees as it was to the employer and there was no probability that the appellant would have taken any greater care for his safety had he been given an instruction or warning of the kind suggested.’”

33.On the facts, notwithstanding the unsatisfactory evidence of P, and in particular the statement that he felt he could do the job assigned to him without instruction, I have concluded that given he was new to this particular kitchen, did not feel able to question his supervisor, had no familiarity with the equipment which might have been available and was given no indication even that such equipment was available to assist him in the task assigned to him that the defendant was in breach of his duty to provide a safe system of work. I am confirmed in this view by the evidence CYM gave of how in the ordinary course the filter on the hood would have been cleaned and left overnight to dry.  This is the sort of information that could easily have been imparted to P.

CONTRIBUTORY NEGLIGENCE

34.I turn then to the defendant’s case that in the event it is held responsible that P’s damages should be reduced on account of his own contributory negligence.  Mr Ho referred the court to the unreported decision of Bharwaney J in Wong Yun Chiu v Union Printing Co Ltd HCPI 282/2009, 29 July 2011 where in the context of an experienced worker attempting to lift a heavy basket of scrap paper over his shoulder, he had this to say:

“ 3. If this occasion was the one and only time he had done this, then I think this would have been a very simple case to decide, in that what he did, to engage in this exercise by himself without seeking assistance from others,or without using the forklift that was available for his use, was clearly foolish and foolhardy.

...

14. I also conclude that the substantial part of the blame must lie with the plaintiff for taking a short cut when he could have used the forklift, or sought assistance, as he had done on the past.  He had 27 years’ experience working in printing factories and 10 years’ experience as a paper cutter.  He acknowledged that he could have lightened the basket by transferring handfuls of scrap paper into the metal cage but that he did not do so as it would have reduced his work efficiency.  He must have known that the act of lifting the heavy basket of scrap paper above his shoulders, in order to tip the basket over the top of the metal cage, might result in injury to himself and that the risk of injury was real.  He failed to have reasonable regard to his own safety when he undertook that task on his own.  Even if he thought that Mr Siu was busy at work, he could still have asked Mr Siu to help him to lift the basket.  I have had regard to the authorities referred to me, but I do so acknowledging that, of course, each case is fact sensitive.  In this case, I find that the degree of contributory negligence on the part of the plaintiff is 50 per cent.  As I said above, what he did was foolish and foolhardy.”

35.P’s response is that you cannot blame him for not taking every precaution which prudence would suggest and relies on the finding of the Court of Appeal in Lau Wing Shing v Chung Fat Mechanical Works Co & another [1988]1 HKLR 435 that a workman should not be judged too harshly for momentary inattention to his own safety when the employer is basically at fault.

36.Whilst I accept this as a general proposition, I think there is a difference on the facts of this case and that of Lau Wing Shing.  In that case, the defendant had been held to have placed P in a dangerous position, welding underground, where he failed to hear and react to a locomotive which struck him.  In this case, we are not talking of a momentary inattention to safety since Ah Sai had asked P to clean the hood and P took it upon himself to do so at 10:45 pm and had purportedly not sought any assistance or instruction because he believed he could do it himself and furthermore he believed that climbing onto a stove for this purpose was normal practice.

37.Mr Ho also pointed to the decision of Suffiad J in Lau Chiu Wah v Kwong Key Construction and Engineering Ltd & others HCPI 581/1998 and in particular the finding of the learned judge that:

“Even accepting in this case that the plaintiff was an experienced stone-cutter, I would be slow in finding contributory negligence on his part by reason of the fact that he was supplied with inadequate equipment for him to carry out his work. Here the plaintiff had to get on with his job despite the inadequate equipment supplied to him by the defendants. A situation quite different from one in which the plaintiff embarks upon an unsafe method of work to take a shortcut or for his own purposes. In the present case, even if the plaintiff was aware that it would not be safe for him to drill standing on top of the metal tank, he was left with little alternative, short of stopping work altogether. For these reasons, I am not prepared to find that the plaintiff was guilty of contributory negligence.”

38.Notwithstanding these authorities which are all fact specific, in this case I find that P should have known that climbing onto a stove and reaching above it to dismantle the hood is inherently dangerous and he should have taken precautions; instead he seemed to say in evidence that he regarded this approach as normal.  Whilst the defendant was at fault in not volunteering the information that the necessary equipment to perform the task was available, and which it now says was available in the restaurant, P was, to my mind, contributorily negligent in neither looking for the appropriate equipment nor asking about its availability and instead adopting what I can only conclude is a self-evidently dangerous method for cleaning the filter.

39.Taking account of P’s argument that he had been working for over 8 hours by 10:45 pm and was likely tired, I nonetheless cannot conclude that this was a case of momentary inadvertence or an excusable lapse and accordingly I find him contributory negligent to the extent of 25%.

THE PLAINTIFF’S INJURIES

40.Before I turn to quantum I will address P’s injuries.  The position is helpfully summarized in the joint medical examination and joint report of Dr Chun Siu Yeung and Dr Tio Man Kwun Peter, specialists in orthopaedics and traumatology dated 20 September 2018.  In this report they record the medical history derived from both P’s account to them and the various medical records retained at the hospital.

41.There is no real dispute over the basic position at the time of P’s admission on 6 September 2016.  Physical examination showed him to have a deep 2 centimetre J shaped laceration of the right thumb with the tendon visible and the digital nerve cut on both sides.  X-ray examination revealed no fracture.  Emergency surgery was performed with a repair to the digital nerve and flexor pollicis longus tendon.  P was then discharged on 9 September 2016 with a thumb splint.

42.P followed up with the orthopaedic out-patient department following the operation attending physical therapy and occupational therapy sessions but suffered a re-rupture of the flexor pollicis longus tendon which was diagnosed on 14 October 2016 and he was as a result re-admitted to Tuen Mun Hospital on 31 October 2016 and tenolysis and flexor tendon repair was performed the following day.  P was discharged on 2 November 2016, again with a thumb splint.

43.Thereafter P was again referred to the physiotherapy and occupational therapy department of Tuen Mun Hospital and was eventually discharged in late June 2017.

44.He continued to complain of pain in his right thumb until the date of the joint examination.  At that time the joint report summarizes P’s complaint as follows:

“45) Cramp of the right thumb at night during change of weather days.

46) Pain at the volar side proximal phalanx of the right thumb,continuous pain with fluctuating intensity pain from grade 7 to grade 9, according to the Visual Analog Scale (VAS) [Grade 0 = no pain; Grade 10 = extreme unbearable pain],with increased pain with movement. There is no other factor that increases pain. He takes analgesic 4 times per day daily.

47) Unable to sleep because of pain waking him up nightly and unable to go back to sleep.

48) Unable to manage a knife.

49) Unable to carry/lift heavy object, even 1 catty, cannot exert.

50) Whole hand less agile—can sweep the floor with the broom but cannot hold the broom.”

45.At the physical examination it is recorded that he wore a right thumb soft brace and he reported no active flexion in his right thumb.

46.In discussing his present condition Dr Chun questioned the continuous pain P complained of, and said this was the result of exaggeration.  He also questioned the accuracy of the report of no active flection at the interphalangeal joint (“IP joint”) as being inconsistent with the findings of a physiotherapy report on 5 January 2017.  He also said that the right hand grip pattern suggested sub-maximal and insincere effort.  His conclusion was that:

“ His condition had long reached maximal improvement. No further treatment is required or will be effective in dealing with symptoms and signs that are exaggerated and inappropriate.”

47.Dr Tio conceded that the injury suffered would lead to the overall function of the right thumb being much impaired and was more inclined to make allowances for P’s stated pain, numbness and the damage he had suffered to his thumb.  His conclusion however was that:

“His condition had reached a state of maximal medical improvement and he should be physically fit for medical evaluation.“

48.They stated their prognosis in the following terms:

Dr Chun:

“He may have residual numbness of the thumb as a residual of repair the cut digital nerves but it is expected the reduction of sensation should be less than he reported at this examination. There may be some residual stiffness at the IP joint of the thumb but active movement should be present as the 2^nd ultrasound examination documented intact tendon after the 2^nd repair. The pinch power may be somewhat reduced. The grip power may be mildly reduced but not as poor as he demonstrated.”

Dr Tio:

“The overall prognosis should be fair only with residual numbness, pain, stiffness, weakness, reduced agility and endurance expected. Even with a successful repair of those structures, the presence of re-rupture of the tendon, presence of possible scarring and adhesion, those signs in the current examination should be compatible.”

49.Dr Chun opined that P was independent with his activities of daily living, and was able to return to work as a cook with a mild reduction of work efficiency.  In addition he said he would be able to return to sports if indeed he had been involved in such sports regularly before the injury.  He concluded that the overall thumb impairment was 21% with a resultant loss of earning capacity of 4%.

50.Dr Tio also concluded that P was now independent, but his ability to carry or lift heavy objects, pinch objects or fine motor movement involving his right thumb would be impaired.  Nonetheless he concluded he should be able to resume duty as a cook but entered the proviso that this was provided he did not have to do heavy manual work, use his right thumb for long periods, or be required to pinch or manipulate fine objects.  He said his right hand endurance could be reduced and so he may need intermittent breaks of 15 minutes after each 1.5 hours of work.  He went on to say that he should be more physically fit for other jobs involving lighter duties, such as a cashier or a security guard, since they do not have to use their right thumb much.  He assessed the loss of earning capacity at 7%.

51.Mr Ho for the defendant submitted that P had indeed exaggerated his present condition and drew the court’s attention to the Patient Initial Assessment Record which was completed on 7 September 2016 immediately after the accident when the intensity of the pain in his right thumb was described by P as mild.  Similarly, the Pain Assessment and Interaction form completed by the Department of Orthopaedics and Traumatology on the same date gives a verbal descriptive reading of “mild” or “moderate”—the writing is unclear, but the word begins with the letter “m”—rather than “severe” or “worst” which are at the upper end of the scale.  This is in sharp contrast, Mr Ho submits, to the pain level reported to P at the joint examination on 20 July 2018, 22 months after the accident, where he describes his pain of fluctuating intensity from grade 7 – 9, where 10 equates to extreme unbearable pain.

52.In support of his submission that P has exaggerated his condition Mr Ho also submitted that P had only worn a soft thumb brace for the purposes of the joint examination and when P was cross-examined, he was unable to say for how long he had worn it and whether he had worn it when he contacted the department specialist at Tuen Mun Hospital in January 2017.  Mr Ho drew the court’s attention to the orthopaedic consultation summary dated 11 January 2017 which made no mention of such a brace.

53.In relation to his claimed inability to have any active flexion in his right thumb IP joint, Mr Ho emphasized the inconsistency of this compared to the 0 – 20 degrees movement described at his examination on 5 April 2017.  Under cross-examination P could not assist the court as to this discrepancy.

54.Finally, in connection with this aspect of the case Mr Ho referred to P’s statement at the joint examination in July 2018 that he was unable to carry/lift a heavy object and could not even manage to lift a load of one catty.

55.The court was shown a surveillance video of P taken some 5 months after the accident and therefore some 17 months before the joint examination which clearly showed P grooming his dog with a brush held in his right hand and picking up and carrying the dog in his right hand.  On cross-examination, P conceded that the dog weighed more than one catty.  When asked when he could first lift his dog after the accident, P at first said about 1.5 years afterwards.  When it was pointed out that the surveillance video was taken only 5 months after the accident, P answers were, in my judgment, evasive.

QUANTUM

Pain, suffering and loss of amenities (“PSLA”)

56.I first turn to P’s claim for pain, suffering and loss of amenities.  The experts are in agreement that the diagnosis is laceration of the right thumb with cut flexor tendon and cut digital nerves on both sides.

57.Mr Sham referred the court to the decision of Ali Rafaqat v Wise Security Ltd DCPI 896/2009, 16 March 2010 in which a 28-year- old security guard was assaulted and suffered from scapho-lunate carpal ligament injury and right thumb metocarpo-phalangeal joints sprain injury.  He experienced residual stiffness and pain in both the right wrist and the right thumb and the court awarded him HK$250,000 for PSLA.

58.He also referred me to another decision of Yiu Pau Yau v Co-Ray Design & Construction Ltd DCPI 864/2006, 3 May 2007, in which a 50-year-old carpenter suffered from complete laceration of his flexor digitorum profundus tendon of the left index finger.  In that case the PSLA was assessed at HK$200,000.

59.Mr Sham argued by analogy that these were figures which were of the right order to award in this case, but that they should be adjusted upward for inflation over the past 10 years, since the date of the latest of these two decisions and relied on the decision of Bharwaney J in David John Slater v The Commissioner of Police [2018] 4 HKC 1 where the learned judge reminded practitioners of the rise in the level of award over the years and the need therefore “to have regard to the rise in the level of awards for damages for PSLA when updating their clients’ Statements of Damages.”

60.Mr Ho, by way of response, referred me to three cases as to the appropriate level of damages for PSLA.  First, in Ng Wan Kong v Kwan Siu Keung [1989] 1 HKC 460, the plaintiff, who was right-handed, suffered a crush injury to his right thumb and the award of PSLA was HK$60,000 ie ⁴⁄₉ of the then lower boundary of serious injury.  In David John Slater Bharwaney J held at §22 that the lower boundary for serious injury was raised to HK$530,000.  Thus, if Ng Wan Kong was decided today, Mr Ho submitted, it would result in an award of HK$235,000.

61.Secondly, in Yiu Pau Yau the plaintiff’s left index finger was cut by the spinning blade of an electric trimmer machine, and he was found to have a laceration of the left index finger with tissue loss and tendon injury. In that case PSLA was awarded at HK$200,000.

62.Finally, in Ip Wing Cheong v Kam Lam t/a Kong Fung Decoration Works DCPI 2457/2011, 30 July 2015, the plaintiff injured his left hand fingers and palm when the saw rebounded towards his left hand.  The PSLA award in that case was HK$250,000.

63.In support of his submission that PSLA award of HK$220,00 was reasonable in circumstances of this case, he sought to distinguish the decision in Ali Rafaqat on the basis that the injuries suffered there were to the right thumb and the right wrist.

64.The exact level of the award of a PSLA is something on which people can legitimately disagree.  In this case I am inclined to the view that the appropriate level should be $350,000 reflecting the fact that some of the authorities are a number of years old now, but they suggest an award in the range of HK$200,000 – 250,000 and I accept that those figures should be adjusted upwards to take account of inflation.

Loss of earnings

65.I turn then to the question of loss of earnings.  The evidence before the court, based on the tax returns disclosed by P was that he had had two other employees in the two years prior to the accident.  P said in cross-examination that he had had other employers, but these were short- term or cases where he was paid in cash.  However, he did not refer to these in his statement, nor was there any documentary evidence in the form of payslips or bank statements produced to substantiate this.  He could offer no explanation for this and I do not therefore accept that there is sufficient evidence before the court for me to take any cognizance of this.

66.According to his tax returns for the financial year 1 April 2014 – 31 March 2015, P was employed by Kik Ngai International Limited from 8 September 2014 to 24 November 2014, and received salary of HK$50,400.  In addition, the tax return shows him receiving leave pay for the period of 1 December 2014 – 31 March 2015 of HK$76,000.  P’s evidence as to why he received leave pay for this period was unsatisfactory.  He said at first he had resigned and received compensation, but this is inconsistent with his tax return for the following year which showed that he had also worked for Kik Ngai International Limited from 1 April 2015 to 15 May 2015 and received wages of HK$30,951.  When confronted with this document, P accepted that he did not resign, but could give no further explanation of his receipt of leave pay.  In the circumstances, the court will rely on the clear evidence from these tax returns which showed that in addition between 16 May 2016 and 23 August 2016, P had worked for Yuet Lung Hin Limited and was paid salary/wages of HK$69,720 as well as a sum of HK$4,742 which is described as “back pay, payment in lieu of notice, terminal awards or gratuities”.

67.P’s started employment with the defendant in this case five days after completing his employment with Yuet Lung Hin Limited.

68.When asked why he had left Yuet Lung Hin, P said he had been terminated because he and his employer took a different view of how he should do his job.

69.P’s evidence in his statement was that he worked for the defendant for around 10 hours per day at a daily wage of HK$750 and enjoyed two days of paid leave and two days of unpaid leave per month.  Thus, he said, his monthly income at the date of the accident was HK$750 × 28 days, namely HK$21,000 plus meal subsidies which took the monthly total to HK$22,680.  On cross-examination he accepted that he was only employed for two weeks as a substitute chef, and the defendant had never intimated that he could work for longer.  When asked about the calculation of his monthly earnings, he said that in relation to leave and leave pay, he had relied on what Mr Chan had told him he had received.  He accepted that nobody of the defendant had addressed this with him.

70.Mr Ho put it to P that the entitlement he now claimed was inconsistent with the information on the payslips he had signed, which contained the words:

“The above daily wage includes the mandatory provident fund between the employer and the employee, annual labour, public holiday, annual leave, rest day per week.”

71.P responded that he had signed the payslip because the dollar value of the payment he received was correct on the slip and so he had had signed it even though he did not accept the veracity of the other statement to which I have referred.

72.It is P’s case that the fact that he was employed from 16 May 2015 to 15 May 2016 and from 24 to 27 August 2016 is not conclusive of what his future earnings both pre- and post-trial would have been.  Mr Sham submits that I should take cognizance of the government’s statistics contained in the Quarterly Report of Wage and Payroll Statistics published in June 2019 by the Census and Statistics Department, and recognize that male cooks on average earned HK$20,271 monthly and worked on average for 26 days per month.  That is therefore the basis for his calculation, namely 26 days × 750 totalling HK$19,500 to which he adds a meal allowance of HK$70 per day for 26 days, which brings the total to HK$21,320 per month.

73.Mr Ho submits that quite apart from the correct figures for P’s earnings having been grossly inflated, it flies in the face of reason to suggest he would work for 26 days a month when one has P’s actual figures for the last two years which showed significant periods of unemployment.  In addition, P had not been employed since the accident notwithstanding the view of the court appointed experts that he could have done so by at the latest the date of their report namely 20 September 2018. 

74.Mr Ho referred the court to two decisions.  First, in Bhim Bahadur Rai v Fung Shing Hong, Hong Kong (a firm) HCPI 776/2007, 17 September 2009, the plaintiff was injured after working for around two weeks in the defendant’s factory.  Prior to that, the plaintiff had been working in various construction sites, but there were also occasions when he was laid off and was unemployed for months before finding another job.  The court did not apply his rate of earnings at the time of the accident, but took the two-year average of the plaintiff’s earnings as the multiplicand.

75.Secondly, in McClintock v Trojan Workforce No 4 Pty Ltd & Anor [2011] QSC 216, Applegarth J computed the plaintiff’s notional earnings by taking the average of the plaintiff’s income over a period of 2.5 years prior to the accident, including periods of unemployment and periods which the plaintiff worked longer hours, because:

“the assessment of the measure of his impaired earning capacity, both in the past and for the future, should be based upon a figure that represents the plaintiff’s likely net weekly income during periods of employment, subject to discounts for contingencies that affect all employees and contingencies that are personal to the plaintiff. One such contingency is the risk of unemployment and, in the plaintiff’s case, this contingency must take account of the fact that he was not in secure, permanent employment at the time of the accident.”

76.In the present case, Mr Ho submitted that P earned HK$74,462 + HK$6,750 = HK$81,212 for the 12 months prior to the accident or HK$6,767.67 per month, and HK$81,212 + HK$50,400 + HK$76,000 + HK$30,951 = HK$238,563 for the 24 months prior to the accident or HK$9,940.13 per month.  Therefore, P’s average monthly earnings should, in his submission, be HK$10,000.

77.I cannot accept on the evidence that P would have worked for 26 days per month, given his past employment history and the evidence we have of his employment record over the last two years.  I accept D’s submission that I should take the average monthly earning capacity of the two years prior to the accident as the basis for his pre-trial loss of earnings and accordingly I award pre-trial loss of earnings at $10,000 per month from 7 September 2016 until the end of the appropriate period of sickness leave which is a matter I address below.

78.I am not at all convinced by P’s evidence that he could not find work if he had wanted to, given that he had previously found work within five days of being terminated in his prior job, albeit, I accept that that was a short-term appointment.  I accept the medical evidence that he was fit for work, albeit, impaired to some extent in his ability to use his right thumb and I find it surprising that he made no effort to seek employment as a cook, or indeed alternative employment, including as a security guard before trial.  Indeed I accept D’s submission that it is strange that he should have done nothing in terms of training as a security guard until the one-day course he took in June 2019, which was coincidentally at about the time this case was set down for trial.

Sick leave

79.I next turn to sick leave entitlement.  P was granted sick leave from Tuen Mun Hospital for the period from 7 September 2016 to 21 March 2018.  Thereafter he was issued sick leave certificates from Tin Shui Wai Community Health Centre until 16 December 2018.  There is no dispute as to the entitlement until 21 March 2018 but it is the defendant’s submission that the later certificates were issued primarily because of subjective symptoms reported at the health centre by P and there is no evidence that P had any physiotherapy or occupational therapy after June 2017; indeed, P’s treating doctor in the Orthopaedics and Traumatology Department of Tuen Mun Hospital reported P’s condition as static on 10 August 2017.  Furthermore, there is no evidence that P had any active treatment after March 2018 and no treatment records have been produced.  It is on this basis that the defendant says that it is unclear as to the basis on which the latest sick leave certificates were issued.

80.D’s case is that the court is not bound by the latest sick leave certificates and Mr Ho cites in support of this proposition the judgment of Au Yeung J in Pak Siu Hin Simon v JV Fitness Ltd HCPI 574/2014, 15 May 2017.

81.In the absence of any evidence to justify the issue of the further sick leave certificate I am not inclined to award loss of earnings beyond the termination date of the sick leave certificates issued by the hospital on 21 March 2018 since they had been treating P for some 18 months by then and were best placed as medical professionals to make a judgment about P’s ability to work.  I am reinforced in reaching this decision by the conclusions reached in the joint report by Dr Chun and Dr Tio published in September 2018 in which they both concluded that no further treatment was required and accordingly that P was fit for work albeit subject to some impairment in so far as his right thumb is concerned.

Loss of earning capacity

82.Finally, I deal with P’s claim in relation to his loss of earning capacity due to his residual disability.  Prior to trial this had been agreed at HK$48,000 but at trial P sought to increase the monthly figure from HK$8,000 to HK$13,220 thereby increasing the aggregate figure to HK$79,320.  This follows the findings of Dr Chun and Dr Tio that in their opinion the loss of earning capacity was 4% and 7% respectively.  There is clearly no absolute in this area and given that there is an admitted disability of a continuing nature I award the amended figure P claimed at trial.

Summary

83.By way of summary therefore, the amount due to P is made up as follows:

Pain, suffering and loss of amenities	$ 350,000
Pre-trial loss of earnings including MPF	$ 194,250
Future loss of earnings	Nil
Loss of earning capacity	$ 79,320
Special damages (agreed)	$ 7,580
	__________
	$ 631,150
Less   25% contributory negligence	($ 157,787.50)
	____________
	$ 473,362.50
Less   Employees Compensation	($ 400,000 )
	____________
Total award:	$ 73,362.50
	===========

INTEREST

84.Interest is awarded on the damages for pain, suffering and loss of amenities at 2% from the date of the accident until judgment and at 50%of the prevailing judgment rate at the date of the judgment on the award of special damages.

COSTS

85.I make an order nisi that D pay P’s costs to be taxed, if not agreed, in accordance with the Legal Aid Regulations but on the District Court scale given P’s reduction in the quantum of the claim before trial.

Mr Walker Sham, instructed by W K To & Co, assigned by Director of Legal Aid, for the plaintiff

Mr Leon Ho and Ms Karen Chan, instructed by Au & Associates, for the defendant